EPA Implements Clean Air Act Authority to Finalize Greenhouse Gas Emission Standards for Aircraft

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On January 11, 2021, the U.S. Environmental Protection Agency ("EPA") issued the first-ever U.S. greenhouse gas ("GHG") emission standards for aircraft (the "Standards"). The Standards align with the United Nations International Civil Aviation Organization’s ("ICAO") carbon dioxide ("CO2") emission standards adopted in 2017 and ensure that U.S.-manufactured airplanes will be able to be marketed and flown around the world.

As noted in the EPA’s Fact Sheet, these harmonized standards provide global consistency and ensure that all aircraft manufacturers meet the same international standards. The EPA noted that, prior to the Standards, aircraft remained the single largest GHG-emitting transportation source not yet subject to GHG standards in the U.S.

The Standards address subsonic jet airplanes with a maximum takeoff mass ("MTOM") greater than 5,700 kilograms and subsonic propeller driven airplanes with a MTOM greater than 8,618 kilograms. This includes larger business jets through the largest commercial aircraft and is consistent with aircraft covered by the ICAO standards.

New aircraft designs, for which a type certificate application is submitted to the Federal Aviation Administration ("FAA") on or after January 11, 2021, must comply with the Standards upon application. New type designs for aircraft with an MTOM of 60,000 kilograms or less and nineteen or fewer passenger seats must comply by January 1, 2023. In-production airplanes (i.e., newly-manufactured airplanes with designs for which a type application was applied before January 11, 2021) must comply with the Standards by January 1, 2028. The Standards do not apply to airplanes already manufactured or currently in use.

In instituting this action, the EPA is implementing its authority under sections 231 and 232 of the Clean Air Act ("CAA"), under which the EPA can propose aircraft emission standards and then prescribe regulations ensuring compliance with those regulations. In 2016, the EPA found that "concentrations of six well-mixed GHGs in the atmosphere—CO2, methane, nitrous oxide ("N2O"), hydrofluorocarbons, per-fluorocarbons, and sulfur hexafluoride—endanger the public health and welfare of current and future generations" and that CO2 and N2O, two of those GHGs, which are emitted from certain classes of aircraft engines, contribute to that pollution. Based on that rationale, the EPA adopted standards that match the ICAO fuel-efficiency-based standards for CO2 and N2O.

Although the 2017 ICAO standards were developed with input from the EPA, the FAA, and U.S. and international aviation industry stakeholders, the U.S. lagged behind other countries in adopting the Standards. However, according to the EPA’s Technical Support Document:

The main conclusion of the impact analysis for the airplane GHG emissions rule is that it will result in no costs and no emission reductions. This is because the ICAO standards are technology-following standards and all manufacturers have products that either already meet the standards or have new products under development that will meet the standards by their effective dates. The major effect of the adopted standards is to align with ICAO standards in order to provide a level playing field for U.S. manufacturers and to prevent future airplanes from backsliding or incorporating technologies that will have an adverse effect on GHG emissions.

Given the Biden Administration’s focus on climate change, it remains to be seen whether the EPA will consider even more stringent aircraft emission standards. For now, though, this rule ensures that U.S. manufacturers and operators will be able to sell and fly their FAA-certificated aircraft around the world without fear of exclusion because of inconsistencies with ICAO emission standards.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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